The Implied Powers of Congress

Commerce – General Welfare – Common Defense

Necessary and Proper – Tax and Spend – etc,

Article I, Section 8

(Footnotes are not in order)


I’m addressing the two different views on how to interrupt the intent of some of the clauses in the Constitution which have become important issues in many of the cases to reach the Supreme Court.  The various clauses all have one thing in common, and that is from what position one is viewing them.  From a position of defending a “limited” government, apposed to strong “central” government, or those who believe in a strong central government with an ever expanding constitution.

The General Welfare  and Tax and Spend clauses are currently in the spot-light. Much has been written on the issue from both sides, each accusing the other of Constitutional abuses.  The current ongoing controversy over the health care issue, commonly known as ‘Obamacare’ in particular.  In reading James Madison’s letter [14], his observation, which could be a maxim; “. . .a power to advance the public happiness involves a discretion which may be misapplied and abused.”  Such is the case of the ACA.

The dialog contending for one approach or the other, are not new.  From the very outset of this Nation, the contention for each position was evident.  We have Alexander Hamilton, the monument for an expansive government, and on the other side, James Madison, for limited government and States rights.  Madison centered his discussion on the term “enumerated powers” to support the constitutional position of a “limited government” and that powers not delegated to the federal government by the Constitution, are reserved to the States or to the people. (Tenth Amendment)

Justice Owen Roberts, in United States v. Butler points out the two different approaches to the general welfare clause. “Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers.” [8]  (tautology: a phrase or expression in which the same thing is said twice in different words.)

James Madison addressed this in his letter to the people of New York. “It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.  No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such misconstruction.” [14]  Even though Chief Justice Marshall was a follower of the Hamilton theory of government, he recognized that “the 8th section (Article I of the Constitution) enumerates the powers of congress.” [10 at p. 412]  Repeating again at page 421; “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.”

Every thing else set aside, I have to agree with Marshall.  All these other miscellaneous clauses are superfluous and do not extend the powers thus enumerated.  Of course Marshall then turns around and become a supporter of “Hamilton, . . . [who] . . ., maintained the clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and toappropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.” [9 at p.65]  In Hamilton’s words; “The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them.  The same must be the case, in respect to commerce, and to every other matter which its jurisdiction is permitted to extend.” [15]  Justice Owen Roberts also points out that Justice Story also supports the Hamilton position.  With such support, the Court follows Hamilton.

It is questionable, in recent articles written on the General Welfare clause, that Hamilton and Madison were that far apart.  Not to overlook Hamilton’s point, he does give us a warning and a condition for this approach saying; “Every view we may take on the subject, as candid enquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the Federal Government an unconfined authority, as to all those objects which are interested to its management.  It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner, as to admit of its being safely vested with the requisite powers.” [15]  I think Chief Justice John Roberts must have read this when commenting on the legislation before the Court; “Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” [16]  I have to disagree with John Roberts, because this is the very purpose of the division of powers doctrine instilled in our government, to protect the people from unconstitutional legislation which usurps power not delegated.

Notwithstanding the position which Hamilton took in supporting a strong central government, the feeling I get from reading various quotes from his letters, indicates that he respected the fundamental principles inherent in the natural rights of the people.  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” [21]

In an article by Joseph  Sobran  on the subject of the General Welfare clause concludes that; “Alexander Hamilton indirectly confirmed Madison’s point.  Hamilton argued that a bill of rights, which many were clamoring for, would be not only “unnecessary,” but “dangerous.” Since the federal government was given only a few specific powers, there was no need to add prohibitions: it was implicitly prohibited by the listed powers. If a proposed law — a relief act, for instance — wasn’t covered by any of these powers, it was ipso facto unconstitutional.
Adding a bill of rights, said Hamilton, would only confuse matters. It would imply, in many people’s minds, that the federal government was entitled to do anything it wasn’t positively forbidden to do, whereas the principle of the Constitution was that the federal government is forbidden to do anything it isn’t positively authorized to do.
Hamilton too posed some rhetorical questions: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?” Such a provision “would furnish, to men disposed to usurp, a plausible pretense for claiming that power” — that is, a power to regulate the press, short of actually shutting it down.
We now suffer from the sort of confusion Hamilton foresaw. But what interests me about his argument, for today’s purpose, is that he implicitly agreed with Madison about the narrow meaning of “general welfare.”
After all, if the phrase covered every power the federal government might choose to claim under it, the “general welfare” might be invoked to justify government control of the press for the sake of national security in time of war. For that matter, press control might be justified under “common defense.” Come to think of it, the broad reading of “general welfare” would logically include “common defense,” and to speak of “the common defense and general welfare of the United States” would be superfluous, since defense is presumably essential to the general welfare.

So Madison, Hamilton, and — more important — the people they were trying to persuade agreed: the Constitution conferred only a few specific powers on the federal government, all others being denied to it (as the Tenth Amendment would make plain).” [22]

John C. Eastman’s essay also reflects the closeness of the two sides. “For the first eighty-five years of our nation’s history, under both the Articles of Confederation and the Constitution, the language of “general welfare” was viewed as a limitation on the powers of Congress, not as a grant of plenary power. . . .  Lest we forget, we once fought a revolution over just such an abuse of power. One of the charges leveled against King George III in the Declaration of Independence was that “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.”  It is time to restore the “general” to the General Welfare Clause, before Congress eats out any more of our substance.” [23]

Every time I search through the internet, I come across excellent articles on the abuse of the clauses.  Maybe one more from Roger Pilon of the Cato Institute; “Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.  . . .

So today, under the Commerce Clause, Congress can regulate virtually anything. Likewise with taxing, spending, and redistributing under the so-called General Welfare Clause. Yet as Madison, Jefferson, and others noted early on, in response to Hamilton’s Report on Manufactures, if Congress can do anything it wants under those two clauses alone, what was the point of having enumerated its other powers?” [24]

Personally, even though Hamilton would like to see citizens protected with insurance, however, like most people who value their natural rights, I don’t think he would approve of the “shared responsibility tax” imposed upon citizens who fail to sign up for insurance under that Act.  This is surely the servant rising above the master.

An interesting quote coming across the internet included a comment on our politics by Vaclav Klaus, Former Premier of the Czech Republic; “The danger to America is not Barack Obama, but a citizenry capable of entrusting a man like him with the Presidency.  It will be far easier to limit and undo the follies of an Obama presidency than to restore the necessary common sense and good judgment to a depraved electorate willing to have such a man for their president.

The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails America.  Blaming the “prince of the fools” should not blind anyone to the vast confederacy of fools that made him their prince.

The republic can survive a Barack Obama, who is, after all, merely a fool.  It is less likely to survive a multitude of fools such as those who made him their president.”

Back the the subject at hand; The Butler decision was an important turning point in defining the powers of Congress, notwithstanding the fact that even before this decision the view had its “beginnings in the administrations of Washington and Jefferson.” [8]  It is Hamilton’s theory that the present day Roberts court relied on to find the ACA constitutional in the “taxing and spending” clause.

The important feature of the divergent opinions forgot, is found in the fundamental, or “elementary” principles, and both of the Owens and John Roberts’ decisions failed to “ascend” or “descend” to them.  Even the author of the Hamilton theory himself, failed to remember his own counsel:  “The best way of determining disputes and of investigating truth is by ascending to elementary principles.”  I don’t know if using the word “ascending” portrays the proper picture.  It would be more effective in describing this process as “descending” or returning to those “elementary” principles.

This seems to be a fundamental principle, back when, which was also expounded by Patrick Henry; “No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by a frequent recurrence to fundamental principles.” In the Constitution for the State of Utah, they worded it; “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” [12]

 “That to secure these Rights, 

Governments are Instituted Among Men, . . .”

In working with these clauses that are in controversy, it is essential to understand what the ‘natural’ rights of man are and their source.  I believe that it is well settled by the multitude of essays that have been published over the decades, that the source for our rights come from our Creator.  “For the principle aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature;” quoting Blackstone. [4 at p. 156]

Justice Field expressed the importance of these fundamental principles in concurring with the Court. [13] “As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’-that is, so plain that their truth is recognized upon their mere statement-‘that all men are endowed’-not by edicts of emperors, or decrees of parliament, or acts of congress, but ‘by their Creator with certain inalienable rights.’-that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime-‘and that among these are life, liberty, and the pursuit of happiness; and to secure these’-not grant them, but secure them- ‘governments are instituted among men, deriving their just powers from the consent of the governed.”

David O. McKay, an educator and former president of his church addressed this in 1954 saying;  “The whole American concept of progress, which has out stripped every other nation on earth, is based on certain fundamental principles which some men now ask us to abandon.  Certainly we are entitled to challenge such proposals when they are asking us to give up what has worked so well and substitute something which they merely hope will work.

“What are these fundamental principles which have allowed the United States to progress so rapidly and yet remain free?  First, a written Constitution clearly defining the limits of government so that government will not become more powerful than the people; Second, an economic system which is characterized by: Free enterprise —  . . . the right to choose; Third, building an open society where each individual enjoys the greatest opportunity to improve . . .  and pursue happiness; Fourth, assigning government the role of referee rather than competitor . . . .”

These “elementary principles” lay at the foundation of our founding documents, and stand as guide posts to settle controversies or apposing interpretations of certain phrases used.  These constitutional clauses must be so held up against those “elementary principles” and see if they pass the test.  This fact of ascending to fundamental principles is not a new idea.  It is a religious principle expounded by Christ to the lawyer (Matthew 22:37 – 40) when Christ answered the question “which is the greatest commandment in the law?” Christ responded that the love of God and one’s neighbor, concluding that; “On these two commandments hang all the law and the prophets.”  These are fundamental principles of Christian laws, even today.  If any Christian doctrine does not find its basis in these two commandments, love of God and one’s neighbor, then it fails.

Search the Web and you will find several who have listed their idea of the fundamental principles.  The project before us is to identify at least three those principles I find sufficient to support the conclusions of this article.  It is self evident that when all is said and done, those three would be ‘sovereignty’, ‘delegation of authority, and ‘territorial jurisdiction’.  Now as a reminder, just because I only list three, does not exclude other fundamental principles, natural rights, that belong to the people.  It was James Madison who, thankfully, pushed for the exclusion of the Ninth Amendment; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  “[He] introduced the Ninth Amendment as a specific response to the arguments of Hamilton and others that those rights not enumerated in the Bill of Rights would otherwise be given up to the government.” [5 at p. 43]

Mr. Tribe’s comments here are confusing, for in Hamilton’s own words, he does question the exclusion of a Bill of Rights on the Constitutional principle that; “It is evident, therefore, that according to their primitive signification, they [bills of right] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.  Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” [17]

Lest I forget, there is one other fundamental that must be understood in reading the Constitution, that is dealing with constitutional “silence”.  In addressing concept, Mr. Tribe points to the Tenth Amendment, . . . “addressing the powers ‘not delegated,’ is best understood as an instruction on how to read the Constitution’s silence with respect to national governmental authority: on that subject, we are told, ‘silence’ means ‘prohibition.'” (5 at p. 42)   Continuing; “In illuminating contrast to the Tenth Amendment, the Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’  Unlike the Tenth Amendment’s direction as to the Constitutional’s silences bearing on national powers, the Ninth Amendment’s instruction is that rights – related silences do not mean prohibition: ‘they shall not be [so] construed.’ (J. Ely, Democracy and Distrust 34 -41 [1980])  Silence here is not the fence it is under the Tenth Amendment, but an invitation to identify unenumerated rights. . . . ” (5 at p. 43)  It will not be attempted here to list a ‘complete’ set of ‘rights’ retained by the people.  I think they can easily be identified.  Just a note here, we do not want to confuse ‘privileges’ with ‘rights’.

I have often thought that Laurence Tribe was on the side of Hamilton, however, his treatment of constitutional silence reads, I believe, well with Madison.  “Although the Court has at times purported to discern congressional consent under such clauses where such ‘consent’ was at best implicit, I would read those clauses to render any congressional silence (or major ambiguity) in these areas a bar to the corresponding state or executive action.” (5 at p. 37)

The Measuring Stick

All of the three fundamental principles I have chosen to address are closely related.  To start with, in all law making authority, it is the “sovereign” that holds the top position.  “. . . [A]ll legislative powers appertain to sovereignty. [10 at p. 409]  Sovereign powers are ‘delegated’ to the government via the Constitution, but these are only ‘delegated’ powers.  Delegated ‘privileges’, which can be removed by the sovereign people.   The Supreme Court has on several occasions addressed, or answered the question.  Chief Justice Hughs commented;  “In the United States . . . , sovereignty resides in the people who act through the organs established by the Constitution.  [cites omitted]  The Congress as the instrumentality of sovereignty is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains.  The Congress cannot invoke the sovereign power of the people to override their will as thus declared. [18 p. 353]

Returning briefly to Tribe’s notes on Constitutional silence; “At times, indeed, silence can be genuinely eloquent.”  [5 p. 29]   “As Susan Sontag reminds us, ‘[t]o look at something which is ’empty’ is still to be looking, still to be seeing something – if only the ghosts of one’s own expectations . . . Silence remains, inescapably a form of speech . . . and an element in a dialogue.'” (5 at p. 36)  As to sovereignty, the Constitution is silent.  “The United States has no inherent sovereign powers, and no legislative powers other than those conferred by the Constitution.” [20]  Justice Wilson addressed this fact; “… For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive.

To the Constitution of the United States the term sovereignty, is totally unknown.  There is but one place  where it could have been used with propriety, but, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution.  They might have announced themselves ‘sovereign’ people of the United States; but serenely conscious of the fact, they avoided the ostentatious  declaration. . . .”Chief Justice Jay in the same opinion; “It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, ‘We the people of the United States, do ordain and establish this Constitution.’” [26]

In the State of Kansas vs. the State of Colorado, Justice Brewer  was dealing with judicial powers between the States and Federal Government.  In so deciding, Justice Brewer stated a truism; “The creature cannot rule the creator.” [43 p. 83] In every issue involving a “sovereign” in government, and I guess the rule is that in Admiralty, or Civil law, the sovereign cannot be sued without his consent.  In every instance, when the government is put beside the citizen or individual; who is the sovereign?

This relationship is not new.  In Blackstone’s commentaries he points out the nature of law stating; “And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.” [44 p. 38]  Government as the ‘subject’, can exercise only those ‘sovereign’ powers which are delegated to it for the purpose of carrying out its purpose.  And it cannot be overstated that the purpose of government, under the Constitution, is to protect our rights.  The Constitution was written as a law for the government, not a law for the people.  The Common Law governs the people, Civil law structures the government.

Chief Justice John Marshall, a close friend and supporter of the Hamilton theory of government, spoked to the origin of sovereignty in his opinion in M’Cullock v. Maryland.  When you read this definition, it is very clear and understandable, making it easily applied to controversies.  “The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission.” [10 at 429]  I’m not sure how this principle can be made more clear!  What is not clear in the minds of the populous is; Just who is the “sovereign”?  The Constitution is a ‘creation’ of the people.  Individuals are then elected to the ‘privilege’ of putting the plan (Constitution) into operation.  The Marshall definition of sovereignty not only applies to States but also the the Federal government; and individuals.  If you follow the genealogy, you find yourselves at the feet of the Creator.

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”  [11]

I must insert Chief Justice Jay’s comment on this;  “[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects . . . and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” [30 at p. 471]

It is apparent that it was essential for Marshall to support the Courts position on whether a State has the authority to tax an instrumentality of the Federal Government.  This he does by establishing the premise of what operation give birth to the ‘sovereign’, of course the sovereign authority exists over object that it creates or exist by its authority.  Since the defendant, in the case, failed to meet the definition, and since the authority to tax is an element in the office of the sovereign, the State lost.  In establishing governments (federal and state), constitutions set the perimeters for each body of government.  These boundaries now establish the ‘scope’ of their respective authorities.  “In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other.” [10 at p. 410]  As originally established each of the separate governments in our Union had only delegated powers, having authority to do ONLY those things which the people could lawfully delegate to them.  The separate entities can create ‘sovereign’ authority, but only as defined by Chief Justice Marshall, which are limited to things that they ‘create’ or ‘exist’ by their authority.  Conclusion!  Natural rights are NOT created by governments, therefore are not subject to the legislative process.  Clearly pointed out to those who have ears; “One’s right to life, liberty, and property, . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” [27 at p.368]  Some one please remind the Obama/Roberts coalition.

“There is no such thing as government sovereignty contemplated, or provided for, in our National Constitution.  Under our form of government sovereignty is in the people collectively constituting the State, and not the body of men who, for the time being, are invested by them, with civil authority.” [19]  The word sovereign has for its corollary the term ‘subjects’.  The term sovereign is not found in our Constitution, and where the term ‘subject’ is used it prefaced by the adjective ‘foreign’. [24, Art III, Sec. 2]

Delegated Sovereign Powers

Maybe it is just me, but it would seem that trying to explain the concept of delegation of authority, originating with the sovereign would be well settled.  Just to say the term is to state its operation.  It is fundamental to the common law. In speaking to the Jews in the synagogue, Jesus told them that He had been delegated by His Father: “For I came down from heaven, not to do mine own will, but the will of him that sent me” (John 6:38). Ezra Taft Benson, past president and prophet of the Church of Jesus Christ of Latter-day Saints and a prominent government official in the Eisenhower administration understood this principle very well:  “Suppose (individual) ‘A’ wants another horse for his wagon. He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.

If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)? No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago.”

“… Nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another.” [28]

“Whenever government is doing anything that is forbidden to the citizen, that function is illegitimate, according to our theory of government…. Our government is founded squarely on this ‘theory of delegation’. One cannot delegate what he doesn’t have.” [29]  As I understand this concept, if I do not have the right to take your property, I cannot give that authority to another.  So tell me, how in God’s green earth, does the government obtain that authority to take your property, without my consent?  Or yours!

This fundamental activity is so simple to understand, yet difficult to explain and maybe that is why our legal profession and the government bureaucracy refuse to explain it to the public.  Keep us in the dark.  We the sovereign people can only give to our servants (the government), that which we have.  Like John Lock and Dean Russell explained, we can only give that which we have.  We certainly do not have any natural right to take some one else’s property, and therefore we can not delegate that function to government.  As Chief Justice Marshall pointed out; “The right never existed, and the question whether it has been surrendered, can not arise.” [10 at 431]  I believe that there are many in government who understand this principle, however, since it cuts into their power, they remain silent.  “Silence is equated with fraud.”

Constitutional Fundamentals and

Territorial Jurisdiction

Discussing the extent of the authority of the Federal Government, brings in other topics, such as States rights and individual rights.  Hopefully, the question of sovereignty is settled and it now becomes essential to understand how these sovereign powers flow down through the system.  And just which powers are allowed to be “granted” and which powers remain under the Tenth Amendment.  “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.” [10 at p. 405]

I like Marshall’s concession that the powers of the Federal Government are “enumerated” and that the “principle is now universally admitted.”  Words like “enumerated” and “defined” seem to have lost their meaning in our federally structured government.  But then this is the purpose of this examination, to show that after all of the flowered speeches and long  essays, that the natural rights of the people, the individual, set the boundaries for all of the contested clauses of the Constitution.  The genesis for these boundaries begins with the Tenth Amendment, when it declares that; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In Marshall’s opinion, he does treat the contest between the boundaries of the  Federal and State authorities.  Territorial jurisdiction was and still is a closely guarded and cherished issue.  It was at the start, and is now coming to the front today.  The States are beginning to assert their sovereignty and fighting to reclaim their lands.  One principle to understand in viewing the legislature that proceeds from our representatives is that; “Though any one state may be willing to control its operations, no state is willing to allow others to control them.” [10 at p. 405]  The violation of this “Marshall” principle, we see happening every day by the Congress, again most recently, through Obamacare.  The sacredness of property was never made more evident than the recent (April 12, 2014) at the Bundy rance in Nevada.  (Just a side note to the media coverage of this event, they report that the BLM authorities pulled back for safety reasons.  Sounds good, but I doubt that the real reason was because of the over-whelming support for the Bundys from the many concerned public.  The BLM knew that if push came to shove, they would loose many.)

This same principle of State sovereignty (the term sovereignty, being attached to the noun, State or Federal, does not elevate the respective systems to a position above the people), applies to each citizen individually.  We are, and should be, jealous and protective of our God given rights, understanding that we are individually responsible for our actions in respect to them, and are not “willing to allow others to control them.”  As to the separation of the delegated sovereign powers, Justice Iredell explains; “Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrendered must remain as it did before.” [30 at p. 435]

The boundaries are the set by the established right of each of the “sovereign” parties to the constitution.  Justice O’Connor and the Court went through this principle in United States v. New York;  “It is in this sense that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” United State v. Darby, 312 U.S. 100, 124 (1941).  As Justice Story put it, “[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.” 3 J. Story, Commentaries on the Constitution of the United States 752 (1833). [31 at p. 156]”

Justice O’Connor demonstrates how our natural right set the limits on how Congress and the Federal government exercise the provisions of these clauses.  “Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause, Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.”  [31 at p. 156]

It is now understood that our natural rights guide the use of the clauses, now as the extent of that authority is outlined in the Constitutional documents.  At the conclusion of the revolutionary war and the separation of the colonies from England, there was no National or Federal government.  Establishing that governing body was the operation of the people through the capacity of their separate colonies to become States.  Since the States, or colonies were a creation of the people, the only authorities and jurisdiction the governing bodies could receive were what the people could rightfully delegate.  So like wise for the Federal government;  “The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people; and is declared to be ordained, ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.’ [10 at p. 403]

So you have a Union that has “delegated” powers to a structured government with a specific purpose.  That purpose was understood at the off-set, as expressed by both parties;  Hamilton:  “The principle purpose to be answered by Union are these – The common defense of the members – the preservation of the public peace as well against internal convulsions as external attacks – the regulation of commerce with other nations and between the States – the superintendence of our intercourse, political and commercial, with foreign countries.” [13]

Madison:  “. . . [I]t will be proper to review the several powers conferred on the Government of the Union; . . . , they may be reduce into different classes as they relate to the following objects; – 1. security against foreign danger – 2. regulation of the intercourse with foreign nations – 3. maintenance of harmony and proper intercourse among the States – 4. certain miscellaneous objects of general utility – 5. restraint of the States from certain injurious acts – 6. provisions for giving due efficacy to all these powers.” [14]  In another of Madison’s letters; “The powers delegated to the federal government are few and defined. . . . . The former (the federal government) will be exercised principally on external objects as war, peace, negotiation, and foreign commerce; with which the last power of taxation will, for the most part, be connected. . . .” [33]

The foregoing powers summarized by Hamilton and Madison are derived from Article I, Section 8.  Now the authority of legislate and the extent to which that legislation can reach is explained in clause 17;  “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . .” [25]

The objects of government and its source of revenue were pointed out early on by Senator Sherman;  “. . . The objects of the Union, he thought (Mr. Sherman) were few.  1. defence against foreign danger.  2.  against internal disputes & a resort to force.  3.  Treaties with foreign nations.  4.  regulating foreign commerce, & drawing revenue from it. . . .” [32]  It is clear to see how this have changed.

Chief Justice Marshall makes another interesting comment in regards to the territorial jurisdiction of the Federal Government.  It is against all logic to contend that one State can confer a jurisdiction over another State and this is what the Justice points out.  He is still talking about the authority of a State to tax an entity created by the Federal government explain, as only a lawyer can, that “. . ., the people of a single state cannot confer a sovereignty which will extend over them.” [10 at p. 429]  And as far as that goes a single state cannot confer a jurisdiction that would extend over another state, without that States permission.  “We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down, what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. . . .  The right never existed, and the question whether it has been surrendered, cannot arise. . . .  Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government?  We know they would not.  Why, then, should we suppose, that the people of any one state should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests?” [10 at p. 430]

We could really get into some tax fundamentals that would upset our government, however, the point I am trying to make deals with the extent of the Federal government’s authority to legislate within the external borders of the States.  Understanding, delegation of authority, sovereignty of both the State and the individual and the command of the Constitution, it is evident that the “supreme law of the land” has delegated “exclusive legislation” to the Federal government over those lands enumerated in clause 17 of Article I, Section 8.  Conversely, the States are barred from extending their legislation into those objects.

Now there is one caveat in clause 17 which reads; “. . . to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which shall be, for the erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings;”  So unless the individual States have ceded any of their lands over to the Federal government, giving them legislative jurisdiction, the Federal government has none!  In like manner, the States have no legislative jurisdiction over Federal buildings, lands, etc., unless the documents drafted by the State ceding the jurisdiction allows for concurrent jurisdiction.  “… [T]he power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual.” [35]  “This power of exclusive legislation is to be exercised, as thus seen, over places purchased, by consent of the Legislatures of the states in which they are situated, for the specific purposes enumerated. . . .” [36] 

In connection with the issue in Nevada on the Bundy ranch, as I understand it, the land was sold to the State of Nevada and unless the State of Nevada ceded that land over to the Federal government, and the Federal government accepted jurisdiction under the provisions of Title 40 of the United States Code. [34]

“(c) Presumption.— It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section.”

The Federal Government is noted for seizing land under dubious pretenses, and they should be reminded that under the Constitution, the only lands that can be granted to them would be  “. . . for the erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings;” Title 18 of the United States Code Section 7(3) use, basically the same language as clause 17 in defining the territorial jurisdiction of the Federal government.  “ “Special maritime and territorial jurisdiction of the United States. . . . (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.”  I’m not sure that protecting turtles would come under the “necessary and proper” clause.

“The General Government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former, in its appropriate sphere, is supreme; but the States within the limits of their powers not granted, or, in the language of the 10th Amendment, ‘reserved,’ are as independent of the General Government as that government within its sphere is independent of the States.” [37 at p. 124]

During the Eisenhower (1956) administration, a special committee was commissioned to look into a problem “. . . occasioned by the denial to a group of children of Federal employees residing on the grounds of a Veterans’ Administration hospital of the opportunity of attending public schools in the town in which the hospital was located.” [38]  This was a two part study.  It may be difficult to obtain copies of the report, I found part I of the study at the local library, and my efforts to have my senator (Orrin Hatch) obtain a copy for me went no where.  For the most part, the material on this report was obtained from the internet.

A few, among the many from the Committee’s report; “It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, . . .” [38 at Part II, p. 45]

The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State.  Article I, section 8, clause 17, of the Constitution, provides that legislative jurisdiction may be transferred pursuant to its terms only with the consent of the legislature of the State in which is located the area subject to the jurisdictional transfer.  As was indicated in chapter II, the consent requirement of article I, section 8, clause 17, was intended by the framers of the Constitution to preserve the States’ jurisdictional integrity against Federal encroachment.” [38 at Part II, p. 46, 47]

“In view of the fact that the Federal Government’s power to legislate for ceded areas is dependent initially upon a grant of consent in this respect by the State concerned, . . .” [38 at Part II, p. 77]

Do the research, the Enabling Acts for new States usually carry the conditions for entry into the Union.  This is another issue that bothers me as it appears to contradict the doctrine of “equal footing” when a State is admitted.  I have look up the Enabling Act for the State of Utah, and one of the conditions stipulated was that the people “agree and declare that they forever disclaim all right and title to the unappropriated  public lands . . . until the title thereto shall have been extinguished by the United States, . . .”

Of course when all the provision of the Act are met and the President signs, then the State “shall be deemed admitted by Congress into the Union, under and by virtue of this act, on an equal footing with the original States, . . .” [39]

There were some very interesting finding by the committee which seem to have been forgotten by Congress and the States.  It becomes essential to understand the language of the Constitution concerning the authority of Congress’s legislative authority.  As mentioned earlier, Article I, Section 8, clause 17;  “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  And Article IV, Section 3, clause 2:  “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .”

A little bit of history to repeat that at the conclusion of the Revolutionary War there was NO national government; NO united states,  only the thirteen colonies.  In setting up a national government, the States had the authority to spell out the legislative jurisdiction for the new government, as until the Constitution was adopted and the above Articles put in to play, the new government had NONE!  Under the Constitution, the Federal government has very little legislative jurisdiction within the States, and only then with the approval of the States ceding such to the Federal government as outlined in clause 17, “. . . and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State . . .”  And then the land purchases was to be for specific purposes, again as directed by clause 17, ” . . . in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”

Since then and under the skillful leadership of FDR, LBJ, BHO and don’t forget Willy, and I am sure there are a number of republicans in the mix, the government has never wanted for excuses to “land-grab” all it can in the States.  Since our State legislatures are “weak-kneed” in exercising their sovereign status, it fall back on the people like Cliven Bundy in Nevada to lead the way.  (It is so easy to get carried away on these issues)  The “equal footing” doctrine has been hotly debated, with the lawyers siding with those who would change its meaning.

Several web pages, which are critical of Mr. Bundy, in this conflict with the BLM, cite the 9th Circuit Court of Appeals [40] and their ruling in U.S. v. Gardner.  I think the reasoning of the Supreme Court in Coyle v. Smith is more revealing on preserving State’s rights and the “equal footing” doctrine.  One of the questions, which the Court considered was;  “. . .whether there is anything in the decisions of this court which sanctions the claim that Congress may, by the imposition of conditions in an enabling act, deprive a new State of any of those attributes essential to its equality in dignity and power with other States.” [41 at p. 568]

Addressing this question the Court looked to the opinion in the Martin v. Waddell, 16 Pet. 410, case concluding that: “The plain deduction from this case is that, when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original States, and that such powers may not be constitutionally diminished, impaired or shorn away by any conditions, compacts or stipulations embraced in the act under which the new State came into the Union which would not be valid and effectual if the subject of congressional legislation after admission.”[41 at p. 573]

The Coyle Court also passed along the comments of Justice Field speaking for the Court in Escanaba Co. v. Chicago; “On her admission, she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only on the same footing with them.” [41 at p. 575]  Concluding the opinion, the Coyle Court said; “To this we may add that the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears, we may remain a free people, but the Union will not be the Union of the Constitution.” [41 at p. 580]

Notwithstanding the opinion of the 9th Circuit Court on this subject, the fact remains the “equal footing” doctrine presupposes that all of the land of 13 original colonies within their borders had no federal title on it, except that which was afterwards ceded to the federal government.  The Constitution for the United States declares that the legislative jurisdiction is limited to; “. . . all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  All sovereignty and jurisdiction passed to the States upon admission to the Union.

Conclusion . . . .

When considering legislation, as in the ACA or Obamacare, Congress should understand the limits placed upon the Constitution and the clauses therein.  Can the ACA be passed by Congress?  Yes, within the limits of its sovereign capacity, applying the law to objects within the scope of that sovereignty.  Objects which it creates or exist by its permission.  Only those powers or authority that can be delegated by the people as a community can have constitutional force.  Laws pass by Congress have no effect upon the natural rights of the people unless so stipulated or volunteered.  When one enters into a “privileged” occupation or resides in a federal zone like Washington D.C., they have volunteered into that jurisdiction.  And the limit of the territorial jurisdiction imposed upon Congress by the people via the Constitution.

Remember this Mr. Obama and Mr. Roberts, “No matter how ‘good’ the end may be, there could not possibly be any justification for the use of evil means in pursuing it.”  [42 at p. 80]


1.   Page Smith:  The Constitution: A Documentary and Narrative History

2.   Alan Freedman: The Naked Constitution

3.   Lonnie D. Crockett:The United States Constitution Made Easy

4.   Clarence B. Carson: Basic American Government

5.   Laurence H. Tribe: Constitutional Choices

6.   Leonard W. Levy:  Original Intent and The Framers’ Constitution

7.   W. Cleon Skousen: The Making of America

8.   The Constitution of the United States, Analysis and Interpretation,

prepared by the Congressional Research Service, 1982

9.   United States v. Butler,  297 U.S. 1,

10. M’Cullock v. Maryland, 17 U.S. 316 [1819]

11. Yick Wo v. Hopkins Sheriff, 118 U.S. 356, 370

12. Constitution for the State of Utah, Article I, Section 27

      See also: State of Washington Constitution, Art. I, Sec. 32;

                     State of North Carolina Constitution, Art. I, Sec. 35

13. Butchers Union v. Crescent City Co., 111 U.S. 746, 757 [1884]

14. The Federalist, No. 41

15. The Federalist, No. 23

16. N.F.I.B v. Sebelius, 567 U.S.        2012

17. The Federalist, No.84

18. Perry v. United States, 294 U.S. 330

19. Moses Thatcher, On Civil Law, Logan Temple Lectures

20. Calder v. Bull, 3 Dallas 386

21. The Federalist, No. 78

22. The  General Welfare, November 23, 1999

23. Restoring the “General” to the General Welfare Clause, by John C. Eastman

24. Roger Pilon, Vice President for Legal Affairs, Cato Institute

25. Constitution for the United States of America

26. Oswald vs the State of New York, 2 Dallas 415

27. West Virginia State Board of Ed. v. Barnette, 319 U.S. 624 (1943);

Reaffirmed in Lucas v. Forty-Fourth Gen. Assembly of Colorado

377 U.S. 713 (1964)

28. Two Treatise of Government, John Locke

29. Dean Russell, Letter to Compiler, March 19, 1964

30. Chisholm v. State of GA., 2 U.S. 419 (1793)

31. New York v. United States, 505 U.S. 144 (1992)

32. Madison; Notes of Debates in the Federal Convention  of 1787

33. The Federalist No. 45

34. Title 40, Subtitle II, Part A, Chapter 31, Subchapter II, § 3112; Federal jurisdiction

35. Cohens v. Virginia, 19 U.S. 264, 428 [1821]; also,

      U.S. vs. Railroad Bridge Co., 37 Fed. Cases, No. 16,114, p. 686, 692;

      Carter v. Carter Coal Co., 298 U.S. 238 [1936]

36. Ft. Leavenworth R.R. Co. v. Lowe, 114 U.S. 525;

      See also, Joseph Story, Commentaries on the Constitution, §§ 1219-1222

37. The Collector, Buffington v. Day, 78 U.S. 122 [1871]

38. Report of the Interdepartmental Committee for the Study

      of Jurisdiction Over Federal Areas Within the States.

39. Enabling Act for the State of Utah, Approved, July 16, 1894

40. U.S. v. Gardner, 107 F. 3d 1314

41. Coyle v. Smith, 221 U.S. 559 (1911)

42. The American Ideal of 1776, Hamilton Abert Long

43. Kansas v. State of Colorado, 206 U.S. 46  (1907)

44. Commentaries on the Laws of England

      Of the Nature of Laws in general, Vol. 1, Section 2,   1765


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